The One Billion Euro Question for Intel: Moore’s Law or Murphy’s Law?

The One Billion Euro Question for Intel: Moore’s Law or Murphy’s Law? Key Points On 6 September 2017, the Court of Justice of the European Union (CJEU) published its widely anticipated judgement on the Intel case. It set aside an earlier General Court ruling that upheld the European Commission’s previous €1.06bn fine on Intel for abuse of dominance in the chip market. The judgement confirms the importance of analysing economic circumstances in cases involving exclusivity rebates to customers. Moore’s Law (in layman’s terms) states that the processing power of computers doubles every two years. Murphy’s Law states that anything that can go wrong will go wrong. The process of reform of the EU rules on abuse of dominance, which the Commission commenced more than a decade ago, falls somewhere in between the two. The number of court judgements on the topic of abuse of dominance has grown in recent years (although it has not quite doubled), but these judgements have not all moved in the same direction: some have supported the Commission’s aim to give more prominence to the analysis of economic effects, but others have undermined it. No case illustrates this better than the one concerning the exclusivity rebates offered by Intel, the chip-maker co-founded by Gordon Moore, who came up with the insight behind Moore’s Law. In this article, we first recall the context of the Intel abuse of dominance case. This case came after the Commission initiated efforts in promoting effects-based analysis in abuse of dominance cases. We briefly summarise the allegations against Intel and the different milestones of the case, from the Commission’s decision of May 20091 to the Court of Justice (CJEU) judgement of September 2017.2 In a second section, we explain what exclusive and loyalty rebates are, when they may be anticompetitive and why they are used. These elements help shed light on the CJEU’s treatment of economic circumstances around Intel’s rebate scheme, as we show in the third section. In the fourth section, we explain the type of additional analysis the CJEU expects when assessing whether rebates are capable of having anticompetitive effects in the market. We then turn to the CJEU’s treatment of the as-efficient-competitor (AEC) test, before concluding. I. What is the context of the Intel abuse of dominance case? A. Article 102 and the guidance document Article 102 of the Treaty on the Functioning of the European Union (TFEU) and its national equivalents prohibit the abuse of a dominant position. In the past, EU case law tended to follow a form-based approach: first determine dominance; then assess the form of the conduct. Once a company was found to be dominant, its ‘special responsibility’3 not to impair competition meant that it could not engage in certain forms of behaviour, such as pricing below variable cost, tying products,4 or offering loyalty rebates. Little consideration was given to the likely effects of these practices on competition and consumer welfare in a given case. In a 2008 guidance document, the result of several years of consultation, the Commission sought to introduce a more effects-based approach.5 This focused on the effects of the behaviour on competition and consumers. If a particular business practice is unlikely to foreclose competition in a significant part of the market, or if it generates efficiencies that benefit consumers, an effects-based approach suggests that intervention may not be required, even if individual competitors are harmed by the practice. The idea was that practices that have the same effect on the market should be treated the same way, regardless of their form. What followed the guidance paper was a series of Commission cases and EU court judgements that ranged from accepting an effects-based approach—e.g. the CJEU’s Post Danmark Ijudgement, 20126—to completely rejecting effects analysis—e.g. the General Court in Intel, 20147—or leaving it somewhat ambiguous—e.g. the CJEU in Post Danmark II, 2015.8 B. The case against Intel In 2009, the European Commission issued a decision against Intel, asking the company to pay €1.06bn, the highest antitrust fine ever imposed on a single company by the Commission at the time.9 Intel had long been the dominant computer processor chip-maker, with more than 70 per cent of the global market and was accused of exclusionary practices against AMD, its long-time rival. Some of the rebates offered by Intel on its chips to various computer manufacturers were conditional on the manufacturer obtaining all of its chips from Intel—this was the case for Dell, and for Lenovo’s notebooks. Others were conditional on the manufacturer obtaining a certain percentage of its Central Processing Units (CPUs) from Intel—95 per cent for HP’s corporate desktops, and 80 per cent for NEC’s PCs. Such rebates made it harder for Intel’s rivals, the largest one being AMD, to gain market share. In its decision, the Commission carried out a detailed assessment of Intel’s rebates and found that they were illegal both inherently and in their effects on the market. As regards the inherent restriction, in line with previous case law, the Commission stated that such rebates were, by their very nature, capable of breaching competition law and therefore an effects-based analysis was not necessary absent any objective justification. Yet, in line with its 2008 guidance, the Commission also assessed whether an as-efficient competitor would be able to match these rebates, and concluded that it would not. Hence, the Commission also found there to be an abuse on an effects basis. In 2014, although it upheld the Commission’s decision, the General Court held that the Commission’s analysis of effects was unnecessary, stating that exclusivity rebates granted by a dominant undertaking are by their very nature capable of restricting competition, so a form-based approach was sufficient to establish an abuse.10 According to the General Court, any further economic analysis did not even need to be considered. In particular, it rejected the Commission’s effects-based test (notwithstanding the fact that this test also reached the conclusion that Intel’s conduct was anticompetitive, since efficient competitors to Intel were unable to match the rebates). In September 2017, the CJEU decided to set aside the General Court’s judgement and referred the case back to the General Court.11 Thus the final word has yet to be spoken on this case. The CJEU followed the opinion of Advocate General (AG) Wahl issued in October 201612 and calls for a more nuanced assessment of rebate cases than as laid out by the General Court. II. What are exclusivity rebates and why are they potentially anticompetitive? A. The different types of rebates and why some of them are potentially anticompetitive Under European case law, rebates typically fall into three categories: - Volume-based rebates - Loyalty (or fidelity) rebates - Exclusivity rebates The first category is quantity rebates, also known as unconditional rebates. These are solely linked to the quantity of purchases. Rather than determining which customers will be charged which prices, the supplier offers a menu of prices at different volume levels, and customers ‘self-select’ their preferred volume/price combination. Quantity rebates are generally deemed benign even if offered by a dominant company, since they tend to reflect gains in efficiency at higher volumes. The second and third categories of rebate scheme are the problematic ones: loyalty rebates and exclusivity rebates. The General Court in Intel described the former category as: rebate systems where the grant of a financial incentive is not directly linked to a condition of exclusive or quasi-exclusive supply from the undertaking in a dominant position, but where the mechanism for granting the rebate may also have a fidelity-building effect.13 Loyalty rebates are granted to customers according to their purchasing behaviour. The percentage rebate given to a customer increases, usually in discrete jumps, when its purchase volumes exceed a certain target level. Often these target levels are set specifically for that customer, and are based on an increment above its purchases in a previous reference period. The form of loyalty rebate that has received most attention in competition law is the retroactive rebate, which applies not only to the customer’s incremental purchases above the target, but retroactively to all purchases. The Virgin/British Airways case (1999) concerned retroactive rebates offered to travel agents.14 The other classic EU case is Michelin II (2003), which concerned the loyalty rebates that Michelin offered to specialist dealers on replacement tyres for heavy vehicles.15 Exclusivity rebates are closely related to loyalty rebates (in the classic Hoffman-La Roche case of 1979 they were called fidelity rebates16). They are conditional on the customer obtaining all or nearly all of its requirements from the dominant company. In the extreme version the rebates are explicitly conditional on full exclusivity. In softer versions the condition refers to some majority proportion of the customer’s requirements. There is therefore a continuum between exclusivity rebates and other forms of loyalty rebates. The Intel case was about exclusivity rebates. Exclusivity rebates can have anticompetitive effects when competitors of the dominant firm no longer can get access to enough of the customers’ demand to operate in the market, despite being fundamentally as efficient as the dominant firm. By entering into exclusive agreements with customers, the dominant company prevents competitors from selling volumes to them, preventing competition to occur where it could have absent the rebate. In such cases, the competitors’ only alternative is to try and win the customer’s entire demand, which can be difficult when the dominant firm is an unavoidable trading partner, has a must-have product, or is the only one with enough scale to supply large volumes.17 B. Why exclusivity and loyalty rebates are used In light of the potential anticompetitive effects of loyalty rebates, why would companies (dominant or not) decide to put together such schemes if not for their foreclosure effects? In fact, exclusivity or loyalty rebates are used very frequently by companies in all kinds of markets for several business reasons18: - They are required when competing for exclusive customers in order to differentiate oneself on the market - They are a good tool to help achieve growth or other targets as they provide incentives to customers to increase their purchase level (regardless of any anticompetitive intent) - They are simple and easy to implement since at any point in time there is only one applicable price to the client. Incremental volume rebates are not always an attractive substitute for conditional rebates, though they are considered more benign in terms of potential anticompetitive effects. Firstly, incremental volume rebates do not provide the same incentives for customers to increase their purchase volumes as there is no threshold effect in terms of payment to the supplier – though this may be perceived as potentially anticompetitive, it is also a genuinely valid business consideration for all suppliers trying to increase volumes sold. As the Court said in Michelin II, ‘[a]dmittedly, as the applicant points out, the aim of any competition on price and any discount system is to encourage the customer to purchase more from the same supplier.’19 Secondly, conditional rebates, because they are linked to a time horizon, can also provide incentives for the supplier to make relationship-specific investments in order to be able to supply a particular customer. Such an effect is not so strong with incremental volume rebates. Thirdly, incremental volume rebates may also be complicated to make work in practice as a given customer could be charged different prices for different transactions. Customers often prefer retroactive rebates because they are expressed in terms of average prices (which is really what matters to customers since total expenditure equals quantity multiplied by average purchase price). Lastly, from the perspective of the supplier, customers may not perceive the impact of quantity rebates as well as loyalty rebates: for a similar amount of financial concession expected by the firm, customers may not react the same way. A simple example can illustrate these last two points: let’s assume that a supplier is offering an incremental or retroactive rebate once a threshold of 100 units is met. The price before rebates is €10 per unit in both cases. Let’s further assume that the incremental volume rebate is of 30 per cent (applicable for units purchased beyond the 100th) and the retroactive rebate is of 10 per cent (applicable to all units once 100 units have been purchased). The customer’s overall average purchase price per unit, which depends on the number of units purchased in total, is shown on the figure below. In the case of retroactive rebates, if demand is below 100 units, the average purchase price is €10 per unit. If demand exceeds 100 units, the average purchase price is €9 per unit. This very simple pattern is illustrated with the dashed grey line on the figure. In the case of an incremental rebate, once demand exceeds 100 units, the average purchase price starts decreasing as additional units are less expensive. However, unless the customer can anticipate fully what her demand will be at the end of the year, there is no ex ante certainty on the average purchase price that she will be charged eventually. This example further illustrates that for customer demand below 150 units, the customer is better off with the retroactive rebate scheme. For a demand higher than 150 units, she is better off with the incremental rebate scheme. When entering into an agreement with the supplier, if the client anticipates not to exceed the 100 unit threshold by a large number, the retroactive rebate option is more attractive than the incremental rebate option. Again, uncertainty around actual total demand may lead the customer to choose the retroactive rebate scheme even if total demand could turn out to be high. III. The CJEUs judgement: some economic analysis in object cases? Though the CJEU acknowledges the wide body of case law regarding loyalty rebates, it departs from it. In fact, it makes reference, in particular, to Hoffman-La Roche, the seminal case in such matters but states that case law needs to be ‘further clarified’.20 The CJEU states from the outset that: Thus, not every exclusionary effect is necessarily detrimental to competition. Competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality, or innovation.21 The CJEU explains that if the dominant firm proves that the conduct was not capable of restricting competition, and in particular not capable of producing the alleged foreclosure effect, the conduct should not be deemed as illegal (by object or effect). Though exclusivity rebates are presumed to be anticompetitive, that presumption is rebuttable by the dominant firm. In stating that, the CJEU departed from previous case law and contested the General Court’s earlier assessment in Intel. The CJEU’s reasoning can be traced to AG Wahl’s Opinion in the Intel case. AG Wahl questioned the reliance on the nature of the rebates in concluding that they are abusive: Experience and economic analysis do not unequivocally suggest that loyalty rebates are, as a rule, harmful or anticompetitive, even when offered by dominant undertakings. That is because rebates enhance rivalry, the very essence of competition.22 AG Wahl further considered that, while evidence of actual effects does not need to be presented, the concept of ‘capable of restricting competition’ cannot merely be hypothetical or theoretically possible. He preferred the term ‘likelihood of anticompetitive effects’, which must be considerably more than a mere possibility that certain behaviour may restrict competition. This opened the door to an effects-based approach: the assessment of all the circumstances under Article 102 TFEU involves examining the context of the impugned conduct to ascertain whether it can be confirmed to have an anticompetitive effect. If any of the circumstances thus examined casts doubt on the anticompetitive nature of the behaviour, a more thorough effects analysis becomes necessary.23 Though the CJEU agrees with the advocate general when it comes to the assessment of the practice’s capability to foreclose, it does not go as far as retaining that anticompetitive effects need to be ‘likely’. Though this may appear as a slightly obscure debate on points of language, it may make a difference in the bigger picture. The question is whether the CJEU’s judgement is calling for more ‘effects-based’ analysis, or simply for a few sanity checks of the potential for the practice to actually have the anticompetitive effect that can be expected from the mere appearance of the rebate scheme. The Commission argues that there is a difference between capability and likelihood24 and the judgement appears to concur with that assessment. The former is a lower threshold which applies to object cases, while the former is used in effects cases. The CJEU actually keeps the presumption of harm in this type of rebate cases, dating back from Hoffman-La Roche. The judgement, however, now introduces the possibility for the dominant firm to rebut this presumption. The Commission does not have to show effects of the practice, but needs to take into account elements put forward by the dominant firm that indicate that the practice cannot have anticompetitive effects. Given that, in practice, most firms accused of an abuse of dominance will seek to defend themselves by means of an effects-based analysis—and in particular the AEC test as applied to rebates—it is likely that the European Commission will also apply such tests more often going forward. The possibility to show that the practices are not ‘capable’ of restricting competition is different from the concept of ‘objective justification’. The former is required to establish that there has been an anticompetitive object. The latter can be used to mitigate the anticompetitive impact and therefore comes at a later stage in the assessment and assumes the existence of an anticompetitive impact. IV. What kind of additional analysis needs to be undertaken in Art 102 cases? The CJEU considers that, where the company under investigation (here, Intel) provides evidence that its conduct was not capable of restricting competition, the competition authority (here, the European Commission) is required to probe deeper into the economic context of the rebates. This includes: the extent of the company’s dominant position in the relevant market (e.g. super-dominance); the share of the market covered by the challenged practice; the conditions and arrangements for granting the rebates, their duration and their amount; and the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant company.25 This position of the CJEU makes economic sense. Market power is a matter of degree. A company with a near monopoly has a greater ability to foreclose competitors than a company with a 50 per cent market share, and yet both may be considered dominant under competition law criteria. Intel, with its long-standing market position and 70 per cent average market share, probably falls between the two. The market coverage of the rebates in question also matters significantly for the assessment of competitive effects. Intel’s rebates covered, on average, only around 14 per cent of total sales in the market throughout the relevant period. AG Wahl noted that this part of the effects analysis was ‘by no means an arithmetic exercise’, but that 14 per cent coverage could not rule out that the rebates in question did not have anticompetitive effects.26 Another important factor in the effects analysis is the duration of the arrangements between Intel and its customers. A long overall duration of the arrangement can point to a loyalty-inducing effect. However, as noted by AG Wahl, if a customer chooses to stay with the dominant undertaking, it cannot simply be assumed that this choice results from abusive behaviour: where the customer has the option of switching suppliers on a regular basis, even where that option has not been exercised, loyalty rebates will also enhance rivalry. Thus they can also have a pro-competitive effect.27 The CJEU recognises that rebate systems may also have efficiency advantages that might outweigh the exclusionary effects, and that such effects must be part of the assessment: It has to be determined whether the exclusionary effect arising from such a system, which is disadvantageous for competition, may be counterbalanced, or outweighed, by advantages in terms of efficiency which also benefit the consumer…That balancing of the favourable and unfavourable effects of the practice in question on competition can be carried out in the Commission’s decision only after an analysis of the intrinsic capacity of that practice to foreclose competitors which are at least as efficient as the dominant undertaking.28 V. What about the as-efficient-competitor (AEC) test? The Court’s judgement makes a reference to the Commission’s AEC test. The AEC test, as explained in the 2008 guidance paper, is an economic test that takes into account many features of the rebates and the market in which the practices take place. It is designed to determine quantitatively whether an as-efficient competitor could compete when the dominant firm undertakes particular behaviours (whether pricing or non-pricing practices). The test applies for example to a dominant company’s rebate scheme, addressing specifically the question of whether an as-efficient competitor could match the dominant firm’s rebates without making a loss. The test consists in determining whether the dominant firm’s price exceeds some relevant measure of cost (the average avoidable cost or the long-run incremental cost). The relevant cost is measured against the dominant firm’s own costs. If the dominant firm’s price exceeds these costs, an as-efficient competitor can operate in the market. If not, the dominant firm’s price can lead to foreclosure of as-efficient rivals. In addition to the matter of measuring the right cost benchmark, the AEC test relies heavily on estimating the ‘contestable’ part of the demand, in other words the portion of the demand that a rival can credibly compete for. For example, if the dominant firm is an unavoidable trading partner for 80 per cent of a customer’s needs (eg due to a strong brand), the contestable part of the customer’s demand is 20 per cent. It is over these 20 per cent of demand that the dominant firm’s effective price needs to be calculated and then compared to costs. In the example developed earlier in Section 2, we assumed a retroactive rebate scheme whereby a discount of 10 per cent is provided on all units once 100 units are sold (with a base price of €10/u). Let’s further assume that the customer demand is of 120 units and that 20 per cent of that demand is contestable. A competitor could hope to gain up to 24 units of this customer (20 per cent × 120 u). If the client was to purchase everything from the dominant firm, the 120 units would cost her €1,080. Purchasing only 96 units from the dominant firm (120 u–24 u), the client pays €960 to the dominant firm (96 u × €10). The client is therefore unwilling to pay more than €120 (€1,080–€960) for the 24 units bought from the competitor, i.e. €5 per unit – this €5 per unit is the effective price charged by the dominant firm for those last 24 units. If the dominant firm’s average avoidable cost is higher than €5 per unit, the AEC test indicates that the practice is anticompetitive. If the dominant company’s long-run incremental cost is below €5 per unit, the practice is unlikely to lead to any anticompetitive effects, because an as-efficient competitor would be in a position to supply the customer profitably.29 The Commission undertook such a test, as described in detail in the decision, which was contested by Intel. On appeal, Intel argued that the Commission had not taken into account all of its criticisms on that test before taking a decision. The General Court argued that it was not necessary to evaluate these criticisms since the AEC test was anyway superfluous. The CJEU disagrees with the General Court on this point.30 It basically argues that if the Commission decides to use the AEC test in its reasoning, the dominant firm can argue it differently, and the Commission should be held against that analysis in front of the General Court. In fact, it is less the AEC test itself than the fact that the Commission used it in its analysis that the CJEU looks at. Yet, the CJEU acknowledges that the AEC test is a relevant piece of analysis for the purpose of assessing the economic circumstances around rebate schemes. The AEC test as described technically in the guidance paper is not the only possible option to assess the potential anticompetitive effects of a practice. It is one of the possible tools. One of the key benefits of the AEC test is that it captures many of the relevant aspects of rebates that determine whether the rebate scheme can be anticompetitive (customer contestable demand, effective price, costs, etc.). Yet it remains important to think about the capability of the practice to foreclose an as efficient competitor as a matter of principle. This is in fact the difference between the reading of paragraph 136 of the judgement (‘Article 102 TFEU prohibits a dominant undertaking from, among other things, adopting pricing practices that have an exclusionary effect on competitors considered to be as efficient as it is itself’), and the reference to the AEC test under paragraphs 141–146.31 The Court refers both to the principle of protecting as-efficient competitors, arguing that looking at circumstances surrounding the practice may be enough to achieve that, and to the economic tool that is the AEC test. The latter is a relevant piece of information for the former, but the former can be achieved without the latter. By relying on the AEC test, the Commission and the Courts may decrease the risk of over-enforcement: this test would allow to de-prioritise or drop cases that are unlikely to be detrimental to competition in the relevant markets. However, and as always, good quality data and analyses are needed to ensure that the test is applied consistently and to the right standard. VI. Concluding remarks So the Intel judgement, short of arguing for an effects-based analysis of exclusivity rebates, opens the door for more emphasis placed on the circumstances surrounding the rebates, even when they are presumed illegal. The CJEU has accepted the importance of economic criteria such as the degree of dominance, market coverage, and the duration of the practice, despite the absence of hard-and-fast rules when such criteria are applied and thresholds met (thus, critics say, leading to a degree of legal uncertainty). The CJEU has also confirmed the relevance of the as-efficient competitor test in rebate cases, rejecting the simple reliance on the nature of the rebates in assessing them. A similar emphasis on analysis of economic circumstances has been seen in Article 101 cases on restrictive agreements. The CJEU’s Cartes Bancaires ruling of 2014 placed a limit on the type of agreements that could be prohibited ‘by object’, instead focusing on requiring an assessment of the context and effects of the agreement.32 In Intel, the CJEU is therefore to some extent aligning the enforcement approach in Article 101 and Article 102 cases when it comes to practices that are prohibited ‘by object’. Although there is a presumption of harm, this presumption can be rebutted if the accused party shows that the practices are not capable of having anticompetitive effects. Nevertheless, given the developments in case law over the past 10 years, which resemble a pendulum more than a straight-line development à la Moore’s Law, it still seems uncertain where the rules of abuse of dominance ultimately end up. Ongoing cases in Europe are likely to become tests of this new doctrine (including Qualcomm, Google, and pay-for-delay cases). The reform of Article 102 towards an effects-based approach can still go the way of Murphy’s Law. The next word in the Intel saga will again come from the General Court, and even that may not be the last! Footnotes 1 Intel (Case COMP/C-3/37.990), Decision of 13 May 2009. 2 Case C-413/14 P, Intel Corporation Inc. v European Commission, Judgement of the Court, 6 September 2017. 3 Case 322/81, Nederlandsche Banden-Industrie Michelin NV v Commission [1983] ECR 3461 (Michelin I). 4 The sale of a product conditional on the buyer also purchasing a different product from the same supplier. 5 European Commission (2008), ‘Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings’, December. 6 Case C-209/10, Post Danmark A/S v Konkurrencerådet, judgement of 27 March 2012 (Post Danmark I). 7 Case T-286/09 Intel Corp v Commission, judgement of 12 June 2014. 8 Case C-23/14 Post Danmark A/S v Konkurrencerådet, judgement of 6 October 2015 (Post Danmark II). See also Oxera (2015), ‘The Post Danmark II judgement: effects analysis in abuse of dominance cases’, Agenda, October. 9 Intel (Case COMP/C-3/37.990), Decision of 13 May 2009. 10 Case T-286/09 Intel Corp v Commission, judgement of 12 June 2014. 11 Case C-413/14 P, Intel Corporation Inc. v European Commission, Judgement of the Court, 6 September 2017. 12 Case C-413/14 P, Intel Corporation Inc. v European Commission, Opinion of AG Wahl, 20 October 2016. See also Oxera (2016), ‘The latest intel from Luxembourg: an Advocate General prefers effects analysis in abuse cases’, Agenda, November. 13 Case T-286/09 Intel Corp v Commission, Judgement of 12 June 2014, at para 78. 14 Virgin/British Airways (Case IV/D-2/34.780), Decision of 14 July 1999. 15 Case T-203/01 Manufacture Française des Pneumatiques Michelin v Commission [2003] ECR II-4071. 16 Case 85/76 Hoffmann-La Roche & Co AG v Commission [1979] ECR 461. 17 Not all dominant firms are unavoidable trading partners in this sense. This would have to analysed on a case-by-case basis. 18 For a more comprehensive review of pro-competitive effects of rebates, see Zenger, Hans, Loyalty Rebates and the Competitive Process (March 9, 2012). Journal of Competition Law & Economics, Vol. 8, No. 4, pp. 717–768, 2012. 19 Michelin II, 2003 E.C.R. II-4071, para 96. 20 CJEU Judgement, para 138. Case 85/76 Hoffmann-La Roche & Co AG v Commission [1979] ECR 461. 21 CJEU Judgement, para. 136. 22 Opinion of AG Wahl, para. 90. 23 Opinion of AG Wahl, para. 135. 24 Opinion of AG Wahl, para. 110. 25 CJEU Judgement, para. 139. 26 Opinion of AG Wahl, para. 141. 27 Opinion of AG Wahl, para. 156. 28 CJEU Judgement, para. 140. 29 This example illustrates the importance of estimating the contestable share of demand properly. It cannot be assumed that demand is not contestable just because there is a large and well known dominant firm in the market. In this example, the contestable share of the market was assumed to be only 20 per cent. Underestimating the contestable share of the market may lead to over-enforcement as competition authorities try to preserve competition on a segment of demand that is defined too narrowly. 30 CJEU Judgement, paras 141–146. 31 See for example at para 143: ‘the AEC test played an important role in the Commission’s assessment of whether the rebate scheme at issue was capable or having foreclosure effects on as efficient competitors.’ 32 Case C-67/13 P, Groupement des cartes bancaires (CB) v Commission, Judgement of 11 September 2014. AG Wahl had also delivered an Opinion in this case. See also Oxera (2014), ‘From sports bras to cigarettes: economic analysis of anticompetitive agreements’, Agenda, September. © The Author 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of European Competition Law & Practice Oxford University Press

The One Billion Euro Question for Intel: Moore’s Law or Murphy’s Law?

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Abstract

Key Points On 6 September 2017, the Court of Justice of the European Union (CJEU) published its widely anticipated judgement on the Intel case. It set aside an earlier General Court ruling that upheld the European Commission’s previous €1.06bn fine on Intel for abuse of dominance in the chip market. The judgement confirms the importance of analysing economic circumstances in cases involving exclusivity rebates to customers. Moore’s Law (in layman’s terms) states that the processing power of computers doubles every two years. Murphy’s Law states that anything that can go wrong will go wrong. The process of reform of the EU rules on abuse of dominance, which the Commission commenced more than a decade ago, falls somewhere in between the two. The number of court judgements on the topic of abuse of dominance has grown in recent years (although it has not quite doubled), but these judgements have not all moved in the same direction: some have supported the Commission’s aim to give more prominence to the analysis of economic effects, but others have undermined it. No case illustrates this better than the one concerning the exclusivity rebates offered by Intel, the chip-maker co-founded by Gordon Moore, who came up with the insight behind Moore’s Law. In this article, we first recall the context of the Intel abuse of dominance case. This case came after the Commission initiated efforts in promoting effects-based analysis in abuse of dominance cases. We briefly summarise the allegations against Intel and the different milestones of the case, from the Commission’s decision of May 20091 to the Court of Justice (CJEU) judgement of September 2017.2 In a second section, we explain what exclusive and loyalty rebates are, when they may be anticompetitive and why they are used. These elements help shed light on the CJEU’s treatment of economic circumstances around Intel’s rebate scheme, as we show in the third section. In the fourth section, we explain the type of additional analysis the CJEU expects when assessing whether rebates are capable of having anticompetitive effects in the market. We then turn to the CJEU’s treatment of the as-efficient-competitor (AEC) test, before concluding. I. What is the context of the Intel abuse of dominance case? A. Article 102 and the guidance document Article 102 of the Treaty on the Functioning of the European Union (TFEU) and its national equivalents prohibit the abuse of a dominant position. In the past, EU case law tended to follow a form-based approach: first determine dominance; then assess the form of the conduct. Once a company was found to be dominant, its ‘special responsibility’3 not to impair competition meant that it could not engage in certain forms of behaviour, such as pricing below variable cost, tying products,4 or offering loyalty rebates. Little consideration was given to the likely effects of these practices on competition and consumer welfare in a given case. In a 2008 guidance document, the result of several years of consultation, the Commission sought to introduce a more effects-based approach.5 This focused on the effects of the behaviour on competition and consumers. If a particular business practice is unlikely to foreclose competition in a significant part of the market, or if it generates efficiencies that benefit consumers, an effects-based approach suggests that intervention may not be required, even if individual competitors are harmed by the practice. The idea was that practices that have the same effect on the market should be treated the same way, regardless of their form. What followed the guidance paper was a series of Commission cases and EU court judgements that ranged from accepting an effects-based approach—e.g. the CJEU’s Post Danmark Ijudgement, 20126—to completely rejecting effects analysis—e.g. the General Court in Intel, 20147—or leaving it somewhat ambiguous—e.g. the CJEU in Post Danmark II, 2015.8 B. The case against Intel In 2009, the European Commission issued a decision against Intel, asking the company to pay €1.06bn, the highest antitrust fine ever imposed on a single company by the Commission at the time.9 Intel had long been the dominant computer processor chip-maker, with more than 70 per cent of the global market and was accused of exclusionary practices against AMD, its long-time rival. Some of the rebates offered by Intel on its chips to various computer manufacturers were conditional on the manufacturer obtaining all of its chips from Intel—this was the case for Dell, and for Lenovo’s notebooks. Others were conditional on the manufacturer obtaining a certain percentage of its Central Processing Units (CPUs) from Intel—95 per cent for HP’s corporate desktops, and 80 per cent for NEC’s PCs. Such rebates made it harder for Intel’s rivals, the largest one being AMD, to gain market share. In its decision, the Commission carried out a detailed assessment of Intel’s rebates and found that they were illegal both inherently and in their effects on the market. As regards the inherent restriction, in line with previous case law, the Commission stated that such rebates were, by their very nature, capable of breaching competition law and therefore an effects-based analysis was not necessary absent any objective justification. Yet, in line with its 2008 guidance, the Commission also assessed whether an as-efficient competitor would be able to match these rebates, and concluded that it would not. Hence, the Commission also found there to be an abuse on an effects basis. In 2014, although it upheld the Commission’s decision, the General Court held that the Commission’s analysis of effects was unnecessary, stating that exclusivity rebates granted by a dominant undertaking are by their very nature capable of restricting competition, so a form-based approach was sufficient to establish an abuse.10 According to the General Court, any further economic analysis did not even need to be considered. In particular, it rejected the Commission’s effects-based test (notwithstanding the fact that this test also reached the conclusion that Intel’s conduct was anticompetitive, since efficient competitors to Intel were unable to match the rebates). In September 2017, the CJEU decided to set aside the General Court’s judgement and referred the case back to the General Court.11 Thus the final word has yet to be spoken on this case. The CJEU followed the opinion of Advocate General (AG) Wahl issued in October 201612 and calls for a more nuanced assessment of rebate cases than as laid out by the General Court. II. What are exclusivity rebates and why are they potentially anticompetitive? A. The different types of rebates and why some of them are potentially anticompetitive Under European case law, rebates typically fall into three categories: - Volume-based rebates - Loyalty (or fidelity) rebates - Exclusivity rebates The first category is quantity rebates, also known as unconditional rebates. These are solely linked to the quantity of purchases. Rather than determining which customers will be charged which prices, the supplier offers a menu of prices at different volume levels, and customers ‘self-select’ their preferred volume/price combination. Quantity rebates are generally deemed benign even if offered by a dominant company, since they tend to reflect gains in efficiency at higher volumes. The second and third categories of rebate scheme are the problematic ones: loyalty rebates and exclusivity rebates. The General Court in Intel described the former category as: rebate systems where the grant of a financial incentive is not directly linked to a condition of exclusive or quasi-exclusive supply from the undertaking in a dominant position, but where the mechanism for granting the rebate may also have a fidelity-building effect.13 Loyalty rebates are granted to customers according to their purchasing behaviour. The percentage rebate given to a customer increases, usually in discrete jumps, when its purchase volumes exceed a certain target level. Often these target levels are set specifically for that customer, and are based on an increment above its purchases in a previous reference period. The form of loyalty rebate that has received most attention in competition law is the retroactive rebate, which applies not only to the customer’s incremental purchases above the target, but retroactively to all purchases. The Virgin/British Airways case (1999) concerned retroactive rebates offered to travel agents.14 The other classic EU case is Michelin II (2003), which concerned the loyalty rebates that Michelin offered to specialist dealers on replacement tyres for heavy vehicles.15 Exclusivity rebates are closely related to loyalty rebates (in the classic Hoffman-La Roche case of 1979 they were called fidelity rebates16). They are conditional on the customer obtaining all or nearly all of its requirements from the dominant company. In the extreme version the rebates are explicitly conditional on full exclusivity. In softer versions the condition refers to some majority proportion of the customer’s requirements. There is therefore a continuum between exclusivity rebates and other forms of loyalty rebates. The Intel case was about exclusivity rebates. Exclusivity rebates can have anticompetitive effects when competitors of the dominant firm no longer can get access to enough of the customers’ demand to operate in the market, despite being fundamentally as efficient as the dominant firm. By entering into exclusive agreements with customers, the dominant company prevents competitors from selling volumes to them, preventing competition to occur where it could have absent the rebate. In such cases, the competitors’ only alternative is to try and win the customer’s entire demand, which can be difficult when the dominant firm is an unavoidable trading partner, has a must-have product, or is the only one with enough scale to supply large volumes.17 B. Why exclusivity and loyalty rebates are used In light of the potential anticompetitive effects of loyalty rebates, why would companies (dominant or not) decide to put together such schemes if not for their foreclosure effects? In fact, exclusivity or loyalty rebates are used very frequently by companies in all kinds of markets for several business reasons18: - They are required when competing for exclusive customers in order to differentiate oneself on the market - They are a good tool to help achieve growth or other targets as they provide incentives to customers to increase their purchase level (regardless of any anticompetitive intent) - They are simple and easy to implement since at any point in time there is only one applicable price to the client. Incremental volume rebates are not always an attractive substitute for conditional rebates, though they are considered more benign in terms of potential anticompetitive effects. Firstly, incremental volume rebates do not provide the same incentives for customers to increase their purchase volumes as there is no threshold effect in terms of payment to the supplier – though this may be perceived as potentially anticompetitive, it is also a genuinely valid business consideration for all suppliers trying to increase volumes sold. As the Court said in Michelin II, ‘[a]dmittedly, as the applicant points out, the aim of any competition on price and any discount system is to encourage the customer to purchase more from the same supplier.’19 Secondly, conditional rebates, because they are linked to a time horizon, can also provide incentives for the supplier to make relationship-specific investments in order to be able to supply a particular customer. Such an effect is not so strong with incremental volume rebates. Thirdly, incremental volume rebates may also be complicated to make work in practice as a given customer could be charged different prices for different transactions. Customers often prefer retroactive rebates because they are expressed in terms of average prices (which is really what matters to customers since total expenditure equals quantity multiplied by average purchase price). Lastly, from the perspective of the supplier, customers may not perceive the impact of quantity rebates as well as loyalty rebates: for a similar amount of financial concession expected by the firm, customers may not react the same way. A simple example can illustrate these last two points: let’s assume that a supplier is offering an incremental or retroactive rebate once a threshold of 100 units is met. The price before rebates is €10 per unit in both cases. Let’s further assume that the incremental volume rebate is of 30 per cent (applicable for units purchased beyond the 100th) and the retroactive rebate is of 10 per cent (applicable to all units once 100 units have been purchased). The customer’s overall average purchase price per unit, which depends on the number of units purchased in total, is shown on the figure below. In the case of retroactive rebates, if demand is below 100 units, the average purchase price is €10 per unit. If demand exceeds 100 units, the average purchase price is €9 per unit. This very simple pattern is illustrated with the dashed grey line on the figure. In the case of an incremental rebate, once demand exceeds 100 units, the average purchase price starts decreasing as additional units are less expensive. However, unless the customer can anticipate fully what her demand will be at the end of the year, there is no ex ante certainty on the average purchase price that she will be charged eventually. This example further illustrates that for customer demand below 150 units, the customer is better off with the retroactive rebate scheme. For a demand higher than 150 units, she is better off with the incremental rebate scheme. When entering into an agreement with the supplier, if the client anticipates not to exceed the 100 unit threshold by a large number, the retroactive rebate option is more attractive than the incremental rebate option. Again, uncertainty around actual total demand may lead the customer to choose the retroactive rebate scheme even if total demand could turn out to be high. III. The CJEUs judgement: some economic analysis in object cases? Though the CJEU acknowledges the wide body of case law regarding loyalty rebates, it departs from it. In fact, it makes reference, in particular, to Hoffman-La Roche, the seminal case in such matters but states that case law needs to be ‘further clarified’.20 The CJEU states from the outset that: Thus, not every exclusionary effect is necessarily detrimental to competition. Competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality, or innovation.21 The CJEU explains that if the dominant firm proves that the conduct was not capable of restricting competition, and in particular not capable of producing the alleged foreclosure effect, the conduct should not be deemed as illegal (by object or effect). Though exclusivity rebates are presumed to be anticompetitive, that presumption is rebuttable by the dominant firm. In stating that, the CJEU departed from previous case law and contested the General Court’s earlier assessment in Intel. The CJEU’s reasoning can be traced to AG Wahl’s Opinion in the Intel case. AG Wahl questioned the reliance on the nature of the rebates in concluding that they are abusive: Experience and economic analysis do not unequivocally suggest that loyalty rebates are, as a rule, harmful or anticompetitive, even when offered by dominant undertakings. That is because rebates enhance rivalry, the very essence of competition.22 AG Wahl further considered that, while evidence of actual effects does not need to be presented, the concept of ‘capable of restricting competition’ cannot merely be hypothetical or theoretically possible. He preferred the term ‘likelihood of anticompetitive effects’, which must be considerably more than a mere possibility that certain behaviour may restrict competition. This opened the door to an effects-based approach: the assessment of all the circumstances under Article 102 TFEU involves examining the context of the impugned conduct to ascertain whether it can be confirmed to have an anticompetitive effect. If any of the circumstances thus examined casts doubt on the anticompetitive nature of the behaviour, a more thorough effects analysis becomes necessary.23 Though the CJEU agrees with the advocate general when it comes to the assessment of the practice’s capability to foreclose, it does not go as far as retaining that anticompetitive effects need to be ‘likely’. Though this may appear as a slightly obscure debate on points of language, it may make a difference in the bigger picture. The question is whether the CJEU’s judgement is calling for more ‘effects-based’ analysis, or simply for a few sanity checks of the potential for the practice to actually have the anticompetitive effect that can be expected from the mere appearance of the rebate scheme. The Commission argues that there is a difference between capability and likelihood24 and the judgement appears to concur with that assessment. The former is a lower threshold which applies to object cases, while the former is used in effects cases. The CJEU actually keeps the presumption of harm in this type of rebate cases, dating back from Hoffman-La Roche. The judgement, however, now introduces the possibility for the dominant firm to rebut this presumption. The Commission does not have to show effects of the practice, but needs to take into account elements put forward by the dominant firm that indicate that the practice cannot have anticompetitive effects. Given that, in practice, most firms accused of an abuse of dominance will seek to defend themselves by means of an effects-based analysis—and in particular the AEC test as applied to rebates—it is likely that the European Commission will also apply such tests more often going forward. The possibility to show that the practices are not ‘capable’ of restricting competition is different from the concept of ‘objective justification’. The former is required to establish that there has been an anticompetitive object. The latter can be used to mitigate the anticompetitive impact and therefore comes at a later stage in the assessment and assumes the existence of an anticompetitive impact. IV. What kind of additional analysis needs to be undertaken in Art 102 cases? The CJEU considers that, where the company under investigation (here, Intel) provides evidence that its conduct was not capable of restricting competition, the competition authority (here, the European Commission) is required to probe deeper into the economic context of the rebates. This includes: the extent of the company’s dominant position in the relevant market (e.g. super-dominance); the share of the market covered by the challenged practice; the conditions and arrangements for granting the rebates, their duration and their amount; and the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant company.25 This position of the CJEU makes economic sense. Market power is a matter of degree. A company with a near monopoly has a greater ability to foreclose competitors than a company with a 50 per cent market share, and yet both may be considered dominant under competition law criteria. Intel, with its long-standing market position and 70 per cent average market share, probably falls between the two. The market coverage of the rebates in question also matters significantly for the assessment of competitive effects. Intel’s rebates covered, on average, only around 14 per cent of total sales in the market throughout the relevant period. AG Wahl noted that this part of the effects analysis was ‘by no means an arithmetic exercise’, but that 14 per cent coverage could not rule out that the rebates in question did not have anticompetitive effects.26 Another important factor in the effects analysis is the duration of the arrangements between Intel and its customers. A long overall duration of the arrangement can point to a loyalty-inducing effect. However, as noted by AG Wahl, if a customer chooses to stay with the dominant undertaking, it cannot simply be assumed that this choice results from abusive behaviour: where the customer has the option of switching suppliers on a regular basis, even where that option has not been exercised, loyalty rebates will also enhance rivalry. Thus they can also have a pro-competitive effect.27 The CJEU recognises that rebate systems may also have efficiency advantages that might outweigh the exclusionary effects, and that such effects must be part of the assessment: It has to be determined whether the exclusionary effect arising from such a system, which is disadvantageous for competition, may be counterbalanced, or outweighed, by advantages in terms of efficiency which also benefit the consumer…That balancing of the favourable and unfavourable effects of the practice in question on competition can be carried out in the Commission’s decision only after an analysis of the intrinsic capacity of that practice to foreclose competitors which are at least as efficient as the dominant undertaking.28 V. What about the as-efficient-competitor (AEC) test? The Court’s judgement makes a reference to the Commission’s AEC test. The AEC test, as explained in the 2008 guidance paper, is an economic test that takes into account many features of the rebates and the market in which the practices take place. It is designed to determine quantitatively whether an as-efficient competitor could compete when the dominant firm undertakes particular behaviours (whether pricing or non-pricing practices). The test applies for example to a dominant company’s rebate scheme, addressing specifically the question of whether an as-efficient competitor could match the dominant firm’s rebates without making a loss. The test consists in determining whether the dominant firm’s price exceeds some relevant measure of cost (the average avoidable cost or the long-run incremental cost). The relevant cost is measured against the dominant firm’s own costs. If the dominant firm’s price exceeds these costs, an as-efficient competitor can operate in the market. If not, the dominant firm’s price can lead to foreclosure of as-efficient rivals. In addition to the matter of measuring the right cost benchmark, the AEC test relies heavily on estimating the ‘contestable’ part of the demand, in other words the portion of the demand that a rival can credibly compete for. For example, if the dominant firm is an unavoidable trading partner for 80 per cent of a customer’s needs (eg due to a strong brand), the contestable part of the customer’s demand is 20 per cent. It is over these 20 per cent of demand that the dominant firm’s effective price needs to be calculated and then compared to costs. In the example developed earlier in Section 2, we assumed a retroactive rebate scheme whereby a discount of 10 per cent is provided on all units once 100 units are sold (with a base price of €10/u). Let’s further assume that the customer demand is of 120 units and that 20 per cent of that demand is contestable. A competitor could hope to gain up to 24 units of this customer (20 per cent × 120 u). If the client was to purchase everything from the dominant firm, the 120 units would cost her €1,080. Purchasing only 96 units from the dominant firm (120 u–24 u), the client pays €960 to the dominant firm (96 u × €10). The client is therefore unwilling to pay more than €120 (€1,080–€960) for the 24 units bought from the competitor, i.e. €5 per unit – this €5 per unit is the effective price charged by the dominant firm for those last 24 units. If the dominant firm’s average avoidable cost is higher than €5 per unit, the AEC test indicates that the practice is anticompetitive. If the dominant company’s long-run incremental cost is below €5 per unit, the practice is unlikely to lead to any anticompetitive effects, because an as-efficient competitor would be in a position to supply the customer profitably.29 The Commission undertook such a test, as described in detail in the decision, which was contested by Intel. On appeal, Intel argued that the Commission had not taken into account all of its criticisms on that test before taking a decision. The General Court argued that it was not necessary to evaluate these criticisms since the AEC test was anyway superfluous. The CJEU disagrees with the General Court on this point.30 It basically argues that if the Commission decides to use the AEC test in its reasoning, the dominant firm can argue it differently, and the Commission should be held against that analysis in front of the General Court. In fact, it is less the AEC test itself than the fact that the Commission used it in its analysis that the CJEU looks at. Yet, the CJEU acknowledges that the AEC test is a relevant piece of analysis for the purpose of assessing the economic circumstances around rebate schemes. The AEC test as described technically in the guidance paper is not the only possible option to assess the potential anticompetitive effects of a practice. It is one of the possible tools. One of the key benefits of the AEC test is that it captures many of the relevant aspects of rebates that determine whether the rebate scheme can be anticompetitive (customer contestable demand, effective price, costs, etc.). Yet it remains important to think about the capability of the practice to foreclose an as efficient competitor as a matter of principle. This is in fact the difference between the reading of paragraph 136 of the judgement (‘Article 102 TFEU prohibits a dominant undertaking from, among other things, adopting pricing practices that have an exclusionary effect on competitors considered to be as efficient as it is itself’), and the reference to the AEC test under paragraphs 141–146.31 The Court refers both to the principle of protecting as-efficient competitors, arguing that looking at circumstances surrounding the practice may be enough to achieve that, and to the economic tool that is the AEC test. The latter is a relevant piece of information for the former, but the former can be achieved without the latter. By relying on the AEC test, the Commission and the Courts may decrease the risk of over-enforcement: this test would allow to de-prioritise or drop cases that are unlikely to be detrimental to competition in the relevant markets. However, and as always, good quality data and analyses are needed to ensure that the test is applied consistently and to the right standard. VI. Concluding remarks So the Intel judgement, short of arguing for an effects-based analysis of exclusivity rebates, opens the door for more emphasis placed on the circumstances surrounding the rebates, even when they are presumed illegal. The CJEU has accepted the importance of economic criteria such as the degree of dominance, market coverage, and the duration of the practice, despite the absence of hard-and-fast rules when such criteria are applied and thresholds met (thus, critics say, leading to a degree of legal uncertainty). The CJEU has also confirmed the relevance of the as-efficient competitor test in rebate cases, rejecting the simple reliance on the nature of the rebates in assessing them. A similar emphasis on analysis of economic circumstances has been seen in Article 101 cases on restrictive agreements. The CJEU’s Cartes Bancaires ruling of 2014 placed a limit on the type of agreements that could be prohibited ‘by object’, instead focusing on requiring an assessment of the context and effects of the agreement.32 In Intel, the CJEU is therefore to some extent aligning the enforcement approach in Article 101 and Article 102 cases when it comes to practices that are prohibited ‘by object’. Although there is a presumption of harm, this presumption can be rebutted if the accused party shows that the practices are not capable of having anticompetitive effects. Nevertheless, given the developments in case law over the past 10 years, which resemble a pendulum more than a straight-line development à la Moore’s Law, it still seems uncertain where the rules of abuse of dominance ultimately end up. Ongoing cases in Europe are likely to become tests of this new doctrine (including Qualcomm, Google, and pay-for-delay cases). The reform of Article 102 towards an effects-based approach can still go the way of Murphy’s Law. The next word in the Intel saga will again come from the General Court, and even that may not be the last! Footnotes 1 Intel (Case COMP/C-3/37.990), Decision of 13 May 2009. 2 Case C-413/14 P, Intel Corporation Inc. v European Commission, Judgement of the Court, 6 September 2017. 3 Case 322/81, Nederlandsche Banden-Industrie Michelin NV v Commission [1983] ECR 3461 (Michelin I). 4 The sale of a product conditional on the buyer also purchasing a different product from the same supplier. 5 European Commission (2008), ‘Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings’, December. 6 Case C-209/10, Post Danmark A/S v Konkurrencerådet, judgement of 27 March 2012 (Post Danmark I). 7 Case T-286/09 Intel Corp v Commission, judgement of 12 June 2014. 8 Case C-23/14 Post Danmark A/S v Konkurrencerådet, judgement of 6 October 2015 (Post Danmark II). See also Oxera (2015), ‘The Post Danmark II judgement: effects analysis in abuse of dominance cases’, Agenda, October. 9 Intel (Case COMP/C-3/37.990), Decision of 13 May 2009. 10 Case T-286/09 Intel Corp v Commission, judgement of 12 June 2014. 11 Case C-413/14 P, Intel Corporation Inc. v European Commission, Judgement of the Court, 6 September 2017. 12 Case C-413/14 P, Intel Corporation Inc. v European Commission, Opinion of AG Wahl, 20 October 2016. See also Oxera (2016), ‘The latest intel from Luxembourg: an Advocate General prefers effects analysis in abuse cases’, Agenda, November. 13 Case T-286/09 Intel Corp v Commission, Judgement of 12 June 2014, at para 78. 14 Virgin/British Airways (Case IV/D-2/34.780), Decision of 14 July 1999. 15 Case T-203/01 Manufacture Française des Pneumatiques Michelin v Commission [2003] ECR II-4071. 16 Case 85/76 Hoffmann-La Roche & Co AG v Commission [1979] ECR 461. 17 Not all dominant firms are unavoidable trading partners in this sense. This would have to analysed on a case-by-case basis. 18 For a more comprehensive review of pro-competitive effects of rebates, see Zenger, Hans, Loyalty Rebates and the Competitive Process (March 9, 2012). Journal of Competition Law & Economics, Vol. 8, No. 4, pp. 717–768, 2012. 19 Michelin II, 2003 E.C.R. II-4071, para 96. 20 CJEU Judgement, para 138. Case 85/76 Hoffmann-La Roche & Co AG v Commission [1979] ECR 461. 21 CJEU Judgement, para. 136. 22 Opinion of AG Wahl, para. 90. 23 Opinion of AG Wahl, para. 135. 24 Opinion of AG Wahl, para. 110. 25 CJEU Judgement, para. 139. 26 Opinion of AG Wahl, para. 141. 27 Opinion of AG Wahl, para. 156. 28 CJEU Judgement, para. 140. 29 This example illustrates the importance of estimating the contestable share of demand properly. It cannot be assumed that demand is not contestable just because there is a large and well known dominant firm in the market. In this example, the contestable share of the market was assumed to be only 20 per cent. Underestimating the contestable share of the market may lead to over-enforcement as competition authorities try to preserve competition on a segment of demand that is defined too narrowly. 30 CJEU Judgement, paras 141–146. 31 See for example at para 143: ‘the AEC test played an important role in the Commission’s assessment of whether the rebate scheme at issue was capable or having foreclosure effects on as efficient competitors.’ 32 Case C-67/13 P, Groupement des cartes bancaires (CB) v Commission, Judgement of 11 September 2014. AG Wahl had also delivered an Opinion in this case. See also Oxera (2014), ‘From sports bras to cigarettes: economic analysis of anticompetitive agreements’, Agenda, September. © The Author 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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Journal of European Competition Law & PracticeOxford University Press

Published: Feb 1, 2018

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